Silencing the court reporters

State court reporters must have looked like easy prey for senators cutting corners and slashing costs.

No money for judges. No money for drug treatment courts. No money for attorneys to represent prisoners. No money for technology upgrades to bring the courts into the 21st century.

Why then, should there be money for court reporters, the state employees whose job it is to record testimony during hearings and trials and preserve it for possible appeals? Who would notice cuts to their ranks?

Plenty of people, it turns out.

Judges, lawyers and advocates working in the courts say that the Senate’s budget proposal to reduce the number of reporters by half and replace them with contract employees and audio equipment is not only wrong-headed and short-sighted; it also reflects a fundamental lack of understanding of how the court system functions.

“At the heart of justice is the right of appeal, which necessarily includes an accurate record of lower court proceedings for the appellate court to review,” said Edgar B. Gregory, Senior Resident Superior Court Judge in District 23, which covers Allegheny, Ashe, Wilkes and Yadkin counties. “By eliminating court reporters, we’re doing away with a professional in the courtroom who most everyone agrees is essential.”

Who gets cut?

If you’ve watched courtroom proceedings, in person or on television, you recognize the court reporter, sitting silently close to the judge’s bench, fingers pounding on a stenotype machine, recording testimony at a rate of 225 words or more per minute. On occasion, the reporter will speak up, asking a witness to repeat a word or reading back testimony for the judge or attorney.

That might seem like a mundane task to some, but to the judge, the attorney and the client, the court reporter is often the most important person in the courtroom. They can control the accuracy of the recorded testimony, asking for a repeat if they don’t understand a word, telling a witness to provide verbal answers (as opposed to a nod of the head) and reminding the attorneys that only one should be speaking at a time.

“The thought of conducting trials without an official court reporter to guarantee the accuracy of the testimony that we spend so much effort procuring would be disheartening,” Don Ennis, a veteran civil trial lawyer practicing in southeastern North Carolina, said in a letter sent last week to House representatives. “Lawyers, judges and the litigant parties all count on these professionals to interact with us during proceedings (on more than one occasion I’ve had one yell at me or another trial participant when we all tried to talk at the same time) to assure that a complete, clear and accurate record is made and preserved.”

Court reporters work in the private sector, too – recording testimony at depositions, for example – but to work in the courts, they have to be trained and certified and are experienced in courtroom proceedings.

North Carolina has 102 official court reporters, allocated across the state based upon the size and workload of the judicial districts, plus a handful of rovers who cover courts on an as-needed basis, according to David Jester, manager of court reporters with the Administrative Office of the Courts. A busy county like Wake might have as many as six reporters, while a smaller county might function with just one, he said.

But the Senate wants to cut their ranks by half and redirect savings from those cuts (estimated at nearly $2 million) to retain private contract reporters on an as needed basis. It also allocates $1 million in its budget to purchase audio equipment to be used in place of the eliminated reporters.

“Who gets cut?” Jester asked. “There’s no easy way to do it. You can’t have trials or hearings without a court reporter. Does this district just not have days of court at all one week, so that another district can have two or three days? Do you take away who Harnett County has so that Wake County keeps running? Or do you let Harnett County keep their reporters, and slow Wake down?”

Jester said that the proposal to cut the ranks of court reporters is just one more example of legislators ignoring what the courts need to make the entire justice system function properly.

“The Senate has given a lot of money, and rightly so, to law enforcement – putting more troopers on the road, providing better funding for our crime lab, which is completely overwhelmed,” he said. “So more people who deserve to be arrested can be and can then get their cases ready for trial. But then the legislators keep cutting back on the courts, so those cases can’t be heard in a timely manner.”

The numbers don’t add up

State officials and private court reporters agree that the amount of savings projected by the Senate to be earned by replacing official reporters with a combination of contract reporters and audio equipment is vastly overstated and fails to take into account all underlying costs.

Both state and private reporters make their living by charging for their services in recording testimony and then converting that testimony into a written transcript used by judges and attorneys for court rulings and appeals.

But private contract reporters are simply more expensive. “Contractors can cost close to double what court reporters do. Even when you factor in benefits, the employees still cost less,” Jester said. “So they haven’t budgeted enough to replace the reporters we’ll lose.”

“Court reporters get their salary, but private reporters will charge an appearance fee just to be there,” said Melissa Lagies, an official court reporter in Mecklenburg County. “Plus, in the criminal setting, we are limited by statute to the amount we can charge per page for a transcript – which is $2.50 per page. The going rate for private reporters is $2 or $3 more per page.”

That includes the transcribing of audio-recorded testimony, something the Senate budget overlooks, said Tori Pittman, a reporter with more than 20 years of experience in the courts and in private practice. “I can tell you from experience that transcribing from these audio files is time consuming and labor intensive. I would estimate that for every hour of hearing recorded, it will take three to four hours to produce. This means it will cost more to produce.”

Some speculate that many private reporters won’t sign up for the state work because they won’t make nearly as much as they do outside the courtroom.

“The current rate of pay for a freelance reporter to come in and take down a day’s proceedings in Superior Court is $80, that’s $10 an hour!” said Martha Ware, a 20-year court reporter now working in the Forsyth County courts. “Ask any freelance reporter how much he or she earns for a day-long deposition, and then ask if that person would be willing to spend a day in court for $80.”

The Senate budget also underestimates the costs involved in implementing audio-recording systems.

According to Jester, a million dollars is not enough to outfit the courts with the required equipment. “It would go along way to upgrade and fix the problems we’ve got, but no to replace what they’re taking away.”

According to the AOC, many of the state’s main superior courtrooms are old and difficult to up-fit for modern technology. “Any structural changes will be a county cost, not a state cost, and we have not had time yet to assess that impact,” AOC Communications Director Sharon Gladwell said in an email statement. “In counties where the up-fit is feasible, we will need to acquire some relatively expensive hardware since for the recording to be useful it must be multi-track and constantly monitored.”

Other states which have evaluated a switch to audio-recording have reported that unidentified factors and unanticipated costs drove estimates of implementing such a system up and savings down. In a 2009 survey comparing costs there and in Florida, California confirmed that replacing state-employed court reporters with a combination of digital recording and private reporters in the end would cost the state more. For example, with all factors considered, the cost of producing a 1000-page transcript from a digital recording was $2000 more than a transcript of testimony recorded by a state court reporter.

As stated in that report: “A major shift to [recording] would require that California courts purchase recording equipment, hardwire courtrooms, fund technology improvements to support the capture, transmission and storage of massive digital audio files, and become the primary administrator of transcript production and delivery operations.”

Inaudible

North Carolina already uses audio-recording equipment in a number of courtrooms, mostly at the district court level where the likelihood of appeal is low, and the reviews have been less than glowing.

“As the saying goes, you get what you pay for,” David Jester said. “The transcript from audio is not nearly as good as one from a court reporter, and it takes 30 to 45 days to get that transcript. Our reporters are faster and nearly 100 percent accurate.”

Jester recalled an incident where only one microphone was working in the courtroom, and when the transcript came back, it reflected witness answers but no questions. The parties in that case had to go back to the drawing board.

That’s not uncommon, according to Tori Pittman. “Many of the transcripts I have produced for private clients and for the State have included numerous indications of ‘indiscernible’ within the body of the transcript because of a bad microphone, cross-talk, papers covering the microphone, an attorney too far from the microphone to be picked up,” she said.

“None of these things would have happened if there was a human being paying attention to the record,” Pittman added. “And then what happens when the transcript goes up to the Court of Appeals? What are they supposed to do with a transcript that’s full of holes?”

Adam Finkel, assistant director of government relations for the National Court Reporters Association, agrees that quality is a common complaint. “What we’ve seen as states look to cut costs is that audio recording is not up to par; there’s times when someone’s forgotten to turn the equipment on, or whole sections are inaudible,” he said. “And when these companies make these claims of cost savings, they never include the costs of maintenance and upgrades.”

In the Virginia Tech shooting case, for example, tapes from the shooter’s hearing were lost and, when ultimately found, had significant portions of testimony by the shooter that were inaudible.

Jefferson County, Kentucky, with a so-called “state of the art” audio/video system, learned the hard way that such systems can be unreliable. The county had to spend $1.1 million for upgrades when the system captured only video, but not audio, of months of trials.

Those types of incidents are enough to give most lawyers, clients and judges nightmares. “The thought of relying on an audio recording to create an accurate record is almost frightening to me, as I can imagine all sorts of failures inherent with the most sophisticated technology when it is limited by human operation, mechanical failures, and acoustically challenged courtrooms,” said Don Ennis.

Only experienced court reporters can provide the level of accuracy and professionalism that attorneys like Ennis have come to expect, and require, in state courtrooms.

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years.